Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
ADA – drive-by litigation
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Theaters, ADA Web Access Tags: ADA arbitration, ADA defense, ADA Title II, ADA website, Bird scooters, electric scooters, FHA Defense, Strojnik, uber
Before delving into the fascinating details of ADA and FHA legal developments it doesn’t hurt to remember that in the larger scheme of things the day-to-day problems caused by flaws in the ADA and FHA are not as earth shattering as we like to imagine.
Cities may be responsible for the carelessness of the public
Just a brief note about another alleged abuse of the ADA. According to a press release from the Department of Justice an attorney living in Florida filed hundreds of lawsuits naming as plaintiff individuals whose identities he stole. You can read the press release at this link. If you take the nearly 1000 cases filed by Mr. Finkelstein and add them to the lawsuits filed by Oscar Rosales, Peter Strojnik Sr., and Scott Dinan it starts to become clear that a significant percentage of ADA Title III lawsuits are filed solely to enrich a lawyer and often without any substantive merit. While some commentators say the ADA needs to be scrapped, the real solution is simply to provide a procedure for early dismissal with minimum expenditure of defense attorneys’ fees. Some courts have instituted mandatory mediation programs with this goal, but in many cases the cost of mediation alone makes defense impractical. The real solution is simply a heightened standard for standing that requires plaintiffs to have suffered a real injury and a heightened standard for pleading that requires plaintiffs to identify specifically the ADA violations they claim to have encountered. With that and a program of referring every Title III complaint to a magistrate judge for examination (similar to the way most courts handle pro se complaints) abusive lawsuits could be substantially reduced. The goal is not to make it impossible for plaintiffs to file ADA lawsuits, but rather to limit such lawsuits to those who have suffered a real injury.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Class Actions, ADA Internet Web, ADA Mootness, ADA Web Access, FHA, Uncategorized Tags: ADA defense, ADA web access, driveby lawsuits, FHA Defense, Serial filers
Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.
A pre-emptive strike on website accessibility succeeds.
The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Mootness Tags: ADA defense, ADA Mootness, ADA standing, FHA Defense, Landis v Mariners, unruh act
The blog a day pace I thought I might hit hasn’t happened but I’m not giving up. Here is the first of several Quick Hits on recent ADA and FHA developments.
ADA standing – aiming to high leads to a crash and burn.
It appears the plaintiff in Rizzi v. Hilton Dom. Operating Co., Inc., 2019 WL 4744209 (E.D.N.Y. Sept. 30, 2019) decided to attack not one, but all of the websites operated by the defendant hotel company. Unfortunately, this meant the plaintiff could not identify any single website to which he plausibly intended to return. Litigation filed in the public interest rather than to alleviate an individual harm is the proper business of the Department of Justice, which has no similar limits on standing to sue. More